The Court will decide whether all children with disabilities, including those who attend private schools, are entitled to a free appropriate public education (FAPE). The decision will have significant implications for parents, school districts, and children with disabilities who receive special education services.

In New York City v. Tom F., Tom placed his son Gilbert in a private special education school because the school district was unable to provide an appropriate program. For two years, the school district reimbursed the parent for the private school tuition. Later, the school district developed an IEP that placed the child in a special education class in a public school.

Convinced that the proposed program and placement did not provide his child with a free appropriate education, the parent continued his son's education in the private school. He requested a special education due process hearing to challenge the school district's IEP and to request tuition reimbursement for the private school.

An impartial hearing officer found that the school district did not offer an appropriate program and granted the parent's request for tuition reimbursement. The hearing officer found that the parent “did everything asked of him . . . in regard to this matter.” The school district appealed. A state review officer affirmed the hearing officer's decision.

The school district appealed to U.S. District Court. The U. S. District court reversed the decisions of the impartial hearing officer and state review officer, and held that the Individuals with Disabilities Education Act does not require a school district to reimburse a parent if the child has never been enrolled in public school.

The relevant statute reads:

(ii) Reimbursement for Private School Placement. If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private elementary or secondary school without the consent or or rferal by the public agency, a court of a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment." 20 U.S.C 1412(a)(10)(C)(ii) (page 74 in Wrightslaw, Special Education Law, 2nd Edition)

The U.S. Court of Appeals for the Second Circuit vacated and remanded the decision "in light of this Court's decision in Frank G. v. Board of Education of Hyde Park, 14 No. 04-4981, --- F.3d ---, 2006." The Second Circuit held that the IDEA was not meant to deny reimbursement to students who have never been enrolled in public school. To rule otherwise would be to require parents to enroll children in inappropriate public school programs before they could be eligible for tuition reimbursement.

Tom F. and his son Gilbert are represented by Paul G. Gardephe, Esq., Patterson Belknap Webb & Tyler LLP. The New York City Board of Education is represented by Leonard J. Koerner, Esq., Corporation Counsel for the City of New York.To Top

Question Presented

"Does the holding of the United States Court of Appeals for the Second Circuit, stating that the Individuals with Disabilities Education Act permits tuition reimbursement where a child has not previously received special education from a public agency, stand in direct contradiction to the plain language of 20 U.S.C. § 1412(a)(10)(C)(ii) which authorizes tuition reimbursement to the parents of a disabled child “who previously received special education and related services under the authority of a public agency”? Link

In New York City Bd of Ed. v. Tom F., the Supreme Court will determine if a child will be forced to "try" an inappropriate placement before the parents can remove the child to an appropriate placement and seek reimbursement.

If the Supreme Court affirms the decision by the Second Circuit, parents will have the right to obtain reimbursement from the public school even if the child was never enrolled in a public school special education program.

If the Supreme Court reverses the Second Circuit, parents will have two choices:
they can place their child in an appropriate private program and forfeit any chance to obtain reimbursement, or they can place their child into an inappropriate public school program so they can later remove the child from that program and seek reimbursement.

Briefs Filed

The parties have filed briefs in support of their positions for the Court's consideration.

Amici curiae ("friends of the court") have filed briefs in New York City Bd of Ed. v. Tom F. Amicus briefs provide additional information on specific areas of law or other aspects of the case to assist the Court in the decision-making process.

City To Battle at High Court Over Special Education by Joseph Goldstein, The New York Sun. "The federal government is siding against New York City in a case before the U.S. Supreme Court that parents of children with disabilities are watching closely . . ." (07/20/07)